Note: The court should instruct
the jury on the charged underlying felony prior to this instruction.

The defendant is charged [in count
___] with felony murder. The statute defining this offense reads in pertinent
part as follows:

a person is guilty of murder when,
acting either alone or with one or more persons, (he/she) commits or attempts to
commit <insert one of the following:>

robbery,

burglary,

kidnapping,

sexual assault in
the first degree,

aggravated sexual
assault in the first degree,

sexual assault in
the third degree,

sexual assault in
the third degree with a firearm,

escape in the first
degree,

escape in the
second degree,

and, in the course of and in
furtherance of such crime or of flight therefrom, (he/she), or another
participant, if any, causes the death of a person other than one of the
participants.

For you to find the defendant guilty
of this charge, the state must prove the following elements beyond a reasonable
doubt:

Element 1 - Committed a felonyThe first element is that the
defendant, acting alone or with one or more other persons, committed or
attempted to commit the crime of <insert
underlying felony and instruct on the elements of that offense>1 If you find the defendant guilty
of <insert
underlying felony> in
count <insert number of count charging
underlying felony>,
then this element of felony murder will be proven.

Element 2 - Caused the death of
another personThe second element is that
the actions of the defendant or another participant in the crime of <insert
underlying felony and instruct on the elements of that offense.>1.

Element 3 - In the course of
committing a felonyThe third element is that the
defendant or another participant caused the death of <insert name of decedent>
while in the course of, and in furtherance of, the commission or attempted
commission of the crime of <insert underlying felony>, or, in immediate
flight from the crime. This means that the death occurred during the commission
of the <insert underlying felony> and in the course of carrying out its
objective.

"In the course of the commission" of
the <insert underlying felony> means during any part of the defendant's
participation in the <insert underlying felony>. The phrase "in the
course of the commission" is a time limitation and means conduct occurring
immediately before the commission, during the commission or in the immediate
flight after the commission of the <insert underlying felony>. The
immediate murder of a person to eliminate a witness to the crime or to avoid
detection is also "in the course of the commission." Thus, the death of <insert
name of decedent> must have occurred somewhere within the time span of the
occurrence of the facts which constitute the <insert underlying felony>.

"In furtherance of" the <insert
underlying felony> means that the killing must in some way be causally
connected to or as a result of the <insert underlying felony>, or the
flight from the <insert underlying felony>. The actions of the defendant
that caused the death of <insert name of decedent> must be done to aid
the <insert underlying felony> in some way or to further the purpose of
the <insert underlying felony>.

It does not matter that the act that
caused the death was committed unintentionally or accidentally, rather than with
the intention to cause death, nor does it matter if the death was the result of
<insert name of decedent>'s fear or flight. The defendant is as guilty
when committing this form of murder as (he/she) would be if (he/she) had
intentionally committed the act that caused the death.

Element 4 - Victim was not a
participantThe fourth element is that <insert
name of decedent> was
not a participant in the <insert
underlying felony>.
A participant is one who takes part or shares in the underlying crime.

Conclusion

In summary, the state must prove
beyond a reasonable doubt that 1) the defendant, acting alone or with one or
more other persons, committed or attempted to commit <insert underlying
felony>, 2) the defendant or another participant in the <insert
underlying felony> caused the death of <insert name of decedent>, 3)
the defendant or another participant in the <insert underlying felony>
caused the death while in the course of, and in furtherance of, the commission
or attempted commission of the <insert underlying felony>, or, in
immediate flight from the crime, and 4) <insert name of decedent> was not
a participant in the crime of <insert underlying felony>.

If you unanimously find that the state
has proved beyond a reasonable doubt each of the elements of the crime of felony
murder, then you shall find the defendant guilty. On the other hand, if you
unanimously find that the state has failed to prove beyond a reasonable doubt
any of the elements, you shall then find the defendant not guilty.
________________________________________________________

1 If the underlying felony is charged in
another count, the court may refer the jury to that count. If the underlying felony is an attempt crime, the court must
instruct the jury on the definition of criminal attempt. Small v. Commissioner of Correction,
286 Conn. 707, 727 (2008). See
Attempt -- § 53a-49 (a) (1), Instruction
3.2-1 and
Attempt -- § 53a-49 (a) (2), Instruction
3.2-2.

Commentary

"'Felony murder occurs when, in the
course of and in furtherance of another crime, one of the participants in that
crime causes the death of a person who is not a participant in the crime. . . .
The two phrases, 'in the course of' and 'in furtherance of,' limit the
applicability of the statute with respect to time and causation." (Internal
quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 733
(2000).

The phrase "in the course of"
focuses on the temporal relationship between the murder and the underlying
felony and includes the period immediately before or after the actual commission
of the crime. State v. Montgomery, supra, 254 Conn. 734 (kidnapping did
not end until victim's death); State v. Gomez, 225 Conn. 347, 351 (1993)
(kidnapping does not end until victim's liberty is restored).

The phrase "in furtherance of"
requires that there be a "logical nexus between the felony and the homicide."
State v. Young, 191 Conn. 636, 641 (1983). "All who join in a common
design to commit an unlawful act, the natural and probable consequence of the
execution of which involves the contingency of taking human life, are
responsible for a homicide committed by one of them while acting in pursuance
of, or in furtherance of, the common design." (Emphasis in original;
internal quotation marks omitted.) Id., 642. "In addition to its function in
defining the scope of accomplice liability, the 'in furtherance' phrase also may
serve, where only a single actor is involved, to exclude those murders which,
while committed during the course of an underlying felony, are wholly unrelated
to the commission of that crime." Id., 643. See State v. Montgomery,
supra, 254 Conn. 694 (kidnapping); State v. Cooke, supra, 89 Conn. App.
543-44 (armed robbery); State v. Gayle, 64 Conn. App. 596, 612, cert.
denied, 258 Conn. 920 (2001) (armed robbery).

DefensesAs a matter of law, self-defense is
not available as a defense to a charge of felony murder. State v. Amado,
254 Conn. 184, 200-01 (2000); State v. Burke, 254 Conn. 202, 205 (2000);
State v. Lewis, 245 Conn. 779, 812 (1998). This "holding is consistent
with the purpose underlying felony murder, which is to punish those whose
conduct brought about an unintended death in the commission or attempted
commission of a felony . . . . The felony murder rule includes accidental,
unintended deaths. Indeed, we have noted that crimes against the person like
robbery, rape and common-law arson and burglary are, in common experience,
likely to involve danger to life in the event of resistance by the victim. . .
. Accordingly, when one kills in the commission of a felony, that person
cannot claim self-defense, for this would be fundamentally inconsistent with the
very purpose of the felony murder [statute]. . . ." (Citations omitted;
internal quotation marks omitted.) State v. Amado, supra, 254 Conn. 201.

The sole affirmative defense
available to a charge of felony murder is that specified in General Statutes §
53-54c. State v. Chicano, supra, 216 Conn. 717. See
Affirmative Defense to Felony Murder, Instruction 5.4-2.

Lesser included offensesManslaughter is not a lesser
included offense of felony murder, because manslaughter requires the showing of
a culpable state of mind, which felony murder does not. State v. Castro,
196 Conn. 421, 429 (1985).

A defendant who produces enough
evidence to support an instruction on the affirmative defense to felony murder,
may also be entitled to a lesser included instruction of the underlying felony.
In State v. Bond, 201 Conn. 34 (1986), the defendants claimed that
although they agreed to commit the robbery, they did not know that their
accomplice was armed with a knife and willing to use it. Without the lesser
included charges, the jury was left with "the extreme alternatives of finding
the defendants guilty of felony murder or acquitting them outright." Id., 39.
Similarly, in State v. Green, 207 Conn. 1 (1988), the defendant did not
claim the affirmative defense, but because he introduced sufficient evidence
that he terminated involvement in the underlying crime of robbery, he was
entitled to an instruction on attempted robbery as a lesser included offense of
felony murder.